BHARAT SANCHAR NIGAM LIMITED Vs. VODAFONE ESSAR GUJARAT LIMITED
SUPREME COURT OF INDIA
BHARAT SANCHAR NIGAM LIMITED
Vodafone Essar Gujarat Limited
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RANJAN GOGOI, J. -
(1.) The challenge in this appeal is to a judgment dated 11.02.2010 passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi (hereinafter referred to as the
'Tribunal') by which the demand raised by the appellant BSNL
on the respondent, Vodafone Essar Gujarat Limited, for
alleged tampering with the Caller Line Identification (CLI) has
been set aside by the learned Tribunal.
(2.) The facts in brief may be noticed at the outset.
In the year 1996 the competent authority granted a license to one M/s. Fascel Limited (predecessor-in-interest of the respondent Vodafone) under Section 4(1) of the Telegraph Act, 1885. As the successor-in-interest of Fascel Limited, the respondent entered into an Interconnect Agreement with BSNL for the purpose of interconnecting its network with the BSNL. Under the aforesaid Agreement, the respondent was liable to pay access charges to BSNL for calls originating from its network and terminating in the BSNL's network. Under the Agreement there was an obligation on the part of the respondent to transmit the authentic CLI for the purpose of levy of charges in terms of Agreement. CLI essentially is the information generated by the network which identifies and forwards the calling number.
It must be mentioned, at this stage, that it is during this period of time that the telecommunication sector was undergoing revolutionary changes and witnessing innovations to deal with which both the Department of Telecommunication (DoT) and the regulatory body i.e. Telecom Regulatory Authority of India (TRAI) had issued a series of advisories and regulatory measures some of which are being indicated hereinafter.
(3.) To the issues arising in the present case would be relevant the circular dated 23.06.2003 issued by the DoT
specifying that CLI cannot be tampered in any circumstances.
By the same circular the DoT also gave directions to service providers on how to prevent tampering of CLI. The Telecom Regulatory Authority of India (TRAI) had issued a directive dated 24.11.2003 to BSNL not to tamper with CLI of any call; not to offer calls without CLI and also not to accept any calls without CLI. This was followed by a circular dated 20.01.2004 reiterating the above directions. In exercise of powers under Section 36 of the TRAI Act, 1997 the Regulatory Body also made a set of Regulations known as the Interconnect Usage Charge Regulations, 2003 (IUC Regulations). In terms of the IUC Regulations, the service providers were to raise bills on the basis of Call Detail Records (CDR). Under the CDR based platform in place of the earlier prevailing system of metered calls in which call duration in number of minutes was multiplied by the pulse rate per minute applicable for the trunk group, under the new regime, reliance was on the CLI to identify the type of call and apply the appropriate rates/charges. The BSNL by circular dated 28.01.2004 implemented the aforesaid circular dated 23.06.2003 of the DOT alongwith IUC the Regulations of 2003.
Clause 11 of the aforesaid circular which states that calls received without CLI by BSNL would be charged at the highest slab i.e. at the rate of ISD calls, being relevant to the issues arising, may be noticed below :
"The CLI based barring facility shall be activated at the Pols wherever technically feasible to ensure that the traffic handed over to BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to activate CLI based barring, periodic monitoring of the incoming trunk groups shall be done by BSNL to ensure this objective. The calls received without CLI by BSNL from various operators shall be charged at the highest slab i.e. as for ISD Calls. In case such calls are received by BSNL on a trunk group not meant for such calls then all the traffic received on such trunk group month/billing cycle shall be charged at the rates applicable for IUC of incoming ISD Calls." ;
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